1

Definitions

In this Agreement, unless the context requires otherwise:

• Annual Fee means the annual fee specified in the applicable Schedule or as varied in accordance with the terms of this Agreement.
• Business Day means any day (not being a Saturday or Sunday) on which banks are open for general banking business in Western Australia.
• Confidential Information means the terms of this Agreement and of any other agreement between AlphaBiz and the Client, all documentation and information relating to the business or financial affairs of either party, and any information, document or item which is designated by either party as confidential or relates to AlphaBiz or the Client and is not in the public domain.
• Claim means any claim howsoever arising including under, arising out of, or in connection with, this Agreement or the Services; or at law or in equity including by statute in tort for negligence or otherwise, including negligent misrepresentation; or for restitution including restitution based on unjust enrichment.
• Commencement Date means the commencement date specified in the applicable Schedule.
• Force Majeure has the meaning set out in clause 14.
• GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related legislation and/or regulations.
• Intellectual Property Rights means copyright, trade mark, design, patent, trade secret, Confidential Information, semiconductor or circuit layout rights.
• Moral Rights means any moral rights including the rights described in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended and revised from time to time).
• Renewal Date means the date which is the yearly anniversary of the Commencement Date in each year after the Commencement Date.
• Service Fees means the fees for the Services provided by AlphaBiz to the Client charged in accordance with the applicable Service Fees Schedule.
• Service Request means a request by the Client to AlphaBiz for AlphaBiz to provide the Client with Services.
• Services means the information technology support services as requested by the Client and provided by AlphaBiz in relation to the Client’s operating systems, software and other third party software where agreed by AlphaBiz in its absolute discretion.
• Term means the period commencing on the Commencement Date, or a Renewal Date, as applicable, and expiring on the date which is one calendar year from that date.

2

Term of Agreement

This Agreement commences on the Commencement Date and shall continue until it is terminated in accordance with the provisions of this Agreement.

3

Service Provider’s Obligations

AlphaBiz shall supply the Services to the Client from the Commencement Date, or the date on which AlphaBiz receives payment in full of the first Annual Fee, whichever is the latter, and in accordance with the provisions of this Agreement.

AlphaBiz shall, in carrying out the Services:

• comply with all laws and statutory requirements and codes applicable to the provision of the Services;
• comply with the Client’s reasonable directions, procedures and policies including those relating to access and security; and
• perform the Services with the professional skill, care and diligence that would be expected of a professional consultant experienced in providing services similar to the Services.

AlphaBiz reserves the right to make amendments or modifications to the Services as required by law or which AlphaBiz, in its sole discretion, decides are in the interest of quality, efficiency and security of the Services by giving the Client 30 days notice in writing.

4

Client Obligations

Without limiting any other provision of this Agreement, the Client:

• must provide AlphaBiz with full and free access to the Client’s computer systems, networks, equipment, software, associated software, hardware and services, and full use of any attachments, features or business facilities deemed necessary by AlphaBiz for the performance of the Services;
• must follow the Service Request Procedure when making a Service Request;
• must not create any derivative works based on the software, any software developed by AlphaBiz, or any other software supplied as part of the Services;
• must not copy any feature, design or graphic in, or reverse engineer the software, any software developed by AlphaBiz, or any other software supplied as part of the Services;
• must not use the software or the Services in order to build a competitive solution or assist anyone in any way to build a competitive solution;
• must not use the software or the Services in any way that violates any criminal or civil law;
• must not load test, penetration test or vulnerability test the software or the Services; and
• is solely responsible for and must have internet access, hardware and software that are compatible with the software or any other software supplied as part of the Services.

5

Payment and Invoicing

AlphaBiz will provide the Client with a tax invoice for:

• the initial Annual Fee prior to the Commencement Date;
• subsequent Annual Fees 30 days prior to the expiry of the then current Term; and
• Service Fees and expenses for the Services supplied to the Client, as and when such Services are supplied.

The Client will reimburse AlphaBiz at cost for expenses reasonably incurred in the course of providing the Services.

The Client must pay AlphaBiz’s invoices within 14 days of the date of the invoice without set-off or deduction.

If the Client fails to pay AlphaBiz’s invoice by the due date:

• interest at the rate of 15% per annum shall accrue on the overdue amount calculated on a daily basis from the date when payment becomes due until the date of payment, compounding daily; and
• the Client shall indemnify AlphaBiz from and against all costs and disbursements incurred by AlphaBiz in pursuing the debt, including legal costs on a solicitor and own client basis and AlphaBiz’s debt recovery costs.

6

GST

All capitalised terms in this clause which are not defined in this Agreement have the meanings given to them in the GST Act.

To the extent that a party makes a Taxable Supply under or in connection with this Agreement, the Consideration payable represents the Value of the Taxable Supply for which payment is to be made and on which GST is to be calculated.

A party is not required to make a payment of GST unless it has received a Tax Invoice from the other party.

7

Fee Variations

There will be an annual adjustment to the Annual Fee in line with, and/or taking into consideration, the current CPI rate, skill level of the Client’s staff, environmental factors, the number of requests for assistance in the preceding year, and any additional software, modules or users the Client wishes to include.

AlphaBiz Solutions may, from time to time and in its absolute discretion, vary the Annual Fee and Service Fees by giving the Client 30 days’ notice in writing.

8

Service Reports

AlphaBiz shall prepare an accurate record of each site visit to the Client’s premises. An authorised person of the Client is required to check this record, confirm the description of services rendered, and accept the related charges. A copy of this report is left for the Client’s record and the original forms part of the comprehensive service records kept by AlphaBiz. Service dockets are attached to the invoice for the Client’s records for all in-house, offsite and remote login work.

9

Unlock Codes

The Client agrees and acknowledges that:

• the software and any other software supplied as part of the Services may include a security mechanism that is activated upon installation and future version updates to control software piracy and manage licensing arrangements; and
• unlock codes are usually released by the developer within 1 working day (24 hours) of receipt of a written request, subject to verification of a valid software licence and payment details.

10

Confidentiality

Each party must hold in strict confidence all Confidential Information of the other party, must not disclose it to any person other than the party’s employees, contractors and agents for the purposes of performing the party’s obligations under this Agreement, and must not make use of the other party’s Confidential Information except to the extent necessary for the performance of this Agreement.

These obligations do not apply to the extent that the Confidential Information is in the public domain, where disclosure is required by law, by any court proceedings, or by the requirements of any regulatory body, or where disclosure is made to a legal, accounting or professional adviser bound by an equivalent obligation of confidentiality.

This clause survives the expiry or termination of this Agreement.

11

Ownership

AlphaBiz retains ownership of all licences to the software and any third party software, products and materials supplied by AlphaBiz as part of the Services until fees have been paid in full.

Subject to any express agreement otherwise, AlphaBiz retains ownership of all Intellectual Property Rights relating to all systems, software, programs, products, materials and supporting documentation developed and delivered by AlphaBiz as part of the Services.

AlphaBiz grants to the Client a non-exclusive, royalty-free perpetual licence, for use only by the Client, to all systems, software, programs, products, materials and supporting documentation developed and delivered by AlphaBiz as part of the Services.

If any material is created by AlphaBiz which contains or was created using any Intellectual Property of the Client, AlphaBiz assigns all Intellectual Property Rights in that material to the Client upon its creation and will obtain any necessary Moral Rights waivers and consents.

12

Client Responsibility

The Client agrees and acknowledges that:

• it is responsible for maintaining its computer-based systems and protecting them from loss of data for any reason, including power failure, virus attack, and the integrity of the backup system;
• it is responsible for complying with relevant licensing agreements for the software and any other software installed in the Client’s computer-based systems; and
• it shall ensure that the most current updates of all operating systems, software and other third party software are applied to the Client’s computer-based systems.

Only the current and previous versions of operating systems, software and third party software will be supported by AlphaBiz as part of the Services.

13

Limitation of Liability

To the extent permitted by law, AlphaBiz’s total liability to the Client under or in relation to this Agreement is limited in aggregate to the Annual Fee and Service Fees paid by the Client during the twelve month period immediately preceding the date on which the liability arises.

AlphaBiz will not be liable for any Claim under this Agreement unless the Client notifies AlphaBiz in writing within 30 days after the matter first comes to the Client’s attention, and no later than 30 days after the termination or expiry of this Agreement.

Neither party will be liable under this Agreement for any indirect, special, incidental or consequential loss, including but not limited to loss of opportunity, loss of anticipated savings, loss of profit, revenue or business, damage to reputation, or the cost of capital or other financing costs.

The Client assumes all responsibility for the selection of the Services and software necessary to achieve the Client’s intended results and for use and results of the Services.

This clause survives the expiry or termination of this Agreement.

14

Force Majeure

AlphaBiz shall not be liable for any failure or delay in performing an obligation under this Agreement that is due to causes beyond its reasonable control, including but not limited to acts of God, epidemics, pandemics, quarantine, fire, civil commotion, terrorism, war, strikes, lockouts, changes in laws or regulations, breakdown of communication facilities, computer virus attacks, or malfunctions of computer or data communication equipment.

Force Majeure does not include financial distress, inability to make a profit or avoid a financial loss, changes in market prices or conditions, or a party’s financial inability to perform its obligations.

15

Exclusion of Warranties

Except for the express limited warranties contained in this Agreement, and any implied warranties available to the Client as a consumer of services within the meaning of the Australian Consumer Law contained at Schedule 2 to the Competition and Consumer Act 2010 (Cth), all other warranties concerning deliverables or Services provided by AlphaBiz are expressly disclaimed and excluded.

In respect of conditions and warranties which cannot be excluded by law, AlphaBiz’s liability is limited, where permitted, to the reperformance of the Services for a period of 30 days.

16

Termination

The Client may terminate this Agreement by providing AlphaBiz with written notice at least 60 days prior to a Renewal Date, in which case the Agreement will terminate at the expiry of the then current Term.

AlphaBiz may terminate this Agreement at any time by giving 30 days written notice to the Client.

Either party may terminate this Agreement if the other party commits a breach and fails to remedy it within 14 days after receiving written notice of the breach.

Termination of this Agreement does not extinguish any rights of either party against the other which accrued prior to termination, or any provisions which by their nature survive termination.

17

Non-Solicitation

The Client undertakes to AlphaBiz that during the term of this Agreement and for a period of 12 calendar months after its termination or expiry, the Client shall not directly or indirectly solicit, employ, engage or hire any employee, contractor or personnel of AlphaBiz, interfere with AlphaBiz’s relationship with its staff, or induce any AlphaBiz employee or contractor to leave their engagement.

The Client indemnifies AlphaBiz for any loss, costs, damage, liability or expense (including legal fees) incurred as a result of any breach of this clause. The parties agree that any breach or threatened breach of this clause will cause irreparable injury to AlphaBiz, entitling AlphaBiz to seek injunctive relief in addition to all other available remedies.

18

General Provisions

• The person signing on behalf of the Client represents and warrants that they have all necessary authority to execute this Agreement and that the Client will be bound by all terms and conditions.
• This Agreement shall be governed by and construed in accordance with the laws of Western Australia, and the parties submit to the exclusive jurisdiction of the Courts of Western Australia.
• If any provision of this Agreement is invalid or unenforceable, that provision is severed and the remaining provisions continue in full force and effect.
• Failure by AlphaBiz to enforce any provision shall not be treated as a waiver of that provision.
• This Agreement constitutes the entire agreement between AlphaBiz and the Client as to the subject matter.
• No changes or modifications to this Agreement shall be effective unless agreed in writing by both parties.
• Neither party may assign its rights, benefits or obligations under this Agreement without the consent of the other party.